9th Circuit upholds advertising ban on public TV/radio

One of the few areas that the long arm of advertising has not touched is public TV and radio, as federal law prevents broadcasters who receive money from the government from airing paid ads for political candidates, issue advocacy or corporations.

Now, those waiting for the end of that advertising respite will need to wait a little longer —the 9th Circuit upheld federal law on Dec. 2, voting 9-2 to strike down a California non-profit group’s challenge to broadcast advertisements on its public TV station.

The court said in its ruling (PDF) that the government has an interest in restricting promotional advertising in order to “preserve the essence of public broadcast programming.” Ruling against the argument that advertisements constituted free speech, the court said that the law as written was “narrowly tailored to the harms that Congress sought to prevent and that the restrictions left untouched speech that did not undermine the goal of the statute.”

The majority opinion also differentiated this case from the Supreme Court’s Citizens United ruling, which allowed corporations to donate unlimited sums to political campaigns under the umbrella of free speech. U.S. Circuit Judge M. Margaret McKeown said that case was different, as it “was not about broadcast regulation; it was about the validity of a statute banning political speech by corporations.”

The case originally came about after Minority Television Project Inc., which runs the public TV station KMTP in Palo Alto, Calif., sued the Federal Communications Commission (FCC) over a $10,000 fine it received for airing advertising. A federal judge originally ruled in the FCC’s favor, but a three-judge appeals court panel later ruled 2-1 to overturn the law. The FCC then appealed that decision to the 9th Circuit.

Walter Diercks, an attorney for Minority Television, does not agree with the court’s decision. Diercks told Bloomberg that “from our point of view, the majority got it wrong.” He says that the ban on advertising violates free speech, and that the Supreme Court did not treat speech distributed by broadcast differently from speech over satellite or cable in Citizens United.

Minority Television has months to consider an appeal to the Supreme Court, but Diercks made no indication that he plans to do so. “Unfortunately this is sort of a David and Goliath thing,” Diercks said.

This isn’t the only time the FCC has been in the news recently. For more on the Commission, check out these InsideCounsel stories: